Analysis
By clause 5 of his will dated 2 November 2015 (the will) Malcolm Barton (the testator) gave to his son, the first defendant, a specific bequest which was described as Flat 2, 35 Upper Church Road, Weston-Super-Mare (the flat). The testator died on 12 May 2019. Probate was granted to the claimants who were two of the partners in the firm of Wards, Solicitors (Wards) on 10 January 2020. At the time of making the will and at the time of his death the testator was the sole surviving registered proprietor of a legal charge dated 17 November 2006 over the flat securing the sum of £87,727.52 (the legal charge). He was not, however, the proprietor of the flat which was registered in the name of the first defendant (the flat had been bought for him by his parents). When the testator had originally given instructions to Wards for the making of the will an attendance note was made recording that he wanted to relieve the charge on the property his son was living in. Thus, Wards had mis-described the subject matter of the specific bequest contained in clause 5 of the will. The claimants sought directions as to its construction and a declaration as to whether the legal charge had been extinguished by the operation of the Limitation Act 1980.
Held:
The modern approach to the construction of wills was laid down by Lord Neuberger in Marley v Rawlings [2014] which required the court to ascertain the testator’s intention in the light of:
- (i) the natural and ordinary meaning of the words;
- (ii) the overall purpose of the document;
- (iii) any other provisions of the document;
- (iv) the facts known or assumed at the time the document was made; and
- (v) common sense.
Apart from this, there was a statutory provision relating to the interpretation of wills which permitted extrinsic evidence, including evidence of the testator’s intention, to be admitted where (inter alia) the evidence showed that the language used in any part of it was ambiguous in the light of surrounding circumstances; see s21 of the Administration of Justice Act 1982. Clause 5 of the will was not on its face ambiguous. However, it was ambiguous in the light of surrounding circumstances – did it really purport to give the flat to the person who already owned it, or did it merely give him the charge? Although the testator had paid the purchase price of the flat, there was no question of a resulting trust as the evidence was one of advancement. Section 21 applied and the evidence of the attendance note made by the solicitor taking the instructions for the making of the will was that the client intended to release the charge (and the debt) on his own death and, therefore, as a matter of construction, clause 5 of the will should be treated as a specific gift of the charge and debt over the flat to the first defendant. Even if s21 did not apply, the same conclusion would have been reached by applying the modern rules of construction as set out in Marley. This was supported by older authority to the effect that whatever estate or interest the testator had in land would pass under a gift by that description, if it was specifically referred to so as to show that the testator had that particular land in mind, and if there was nothing else to answer the description.
The legal charge had not been called in during the testator’s lifetime; nor had there been any demand for possession; the first such reference to repayment of the debt was in a letter from the claimants to the first defendant dated 15 November 2019 and the question for the court was as to the effect on the rights thereby created or secured by the provisions of the Limitation Act 1980. As a matter of established authority, the testator’s right to possession of the flat accrued on the date when the legal charge was executed by the first defendant (ie this was the date from which time fell to be measured, if the first defendant was treated as in possession adverse to that of the charge). The limitation of actions generally bars remedies but does not normally extinguish rights. In this case, s20 applied – no action could be brought to recover a principal sum of money secured by a charge after the expiration of 12 years from the date on which the right to receive the money accrued (ie November 2018). However, the debt itself was not thereby extinguished. Although it could not be sued for, it still had other legal effects. The extinguishment of the debt was achieved by the application of s17 and the authority of the decision of the Court of Appeal in Ashe v National Westminster Bank plc [2007] – as there had been no attempt (or even demand) by the chargee to take possession, or any acknowledgement of the debt or the chargee’s right to possession, the mortgaged estate had been extinguished by the adverse possession of the first defendant. It followed, therefore, that even if by a process of construction, the specific gift of the charge had not taken effect, it would no longer be possible for the testator’s estate to claim repayment of the debt or to take possession of the flat.
JUDGMENT HHJ PAUL MATTHEWS: Introduction [1] This is my judgment following the trial of a claim under CPR Part 8 by the personal representatives of the estate of the late Malcolm Barton, in which the claimant sought the directions of the court in connection with the administration of the estate. At the conclusion of the …Continue reading "Pierce & anr v Barton & anr [2024] WTLR 679"